Showing papers on "Plurality opinion published in 2007"

Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court

Abstract: Some scholars argue that the author of the majority opinion exercises the most influence over the Court's opinion-writing process, and so can determine what becomes Court policy, at least within the limits of what some Court majority finds acceptable. Other students of the Court have suggested that the Court's median justice effectively dictates the content of the majority opinion: whatever policy the median justice most wants, she can get. We test these competing models with data on Supreme Court decision-making during the Burger Court (1969-1986). While we find substantial evidence for both models, the agenda control model gains greater support. This suggests that opinions on the Court on each case are driven, in general, by the interaction of three key variables: the policy preferences of the majority opinion author, the policy preferences of the median justice, and the location of the legal status quo.

Strategy and Constraints on Supreme Court Opinion Assignment

Abstract: The assignment of the Supreme Court's majority opinions is one of the principal prerogatives enjoyed by the chief justice. A strategic chief justice is able to influence the course of legal policy through agenda-setting; that is, the chief justice exercises influence over policy by choosing the justice who will author an opinion and, thereby, determining which policy alternative will be developed in a majority opinion draft. Through strategic opinion assignment, then, the chief is able to guide the Court to an outcome that is closest to his preference or that will result in the least policy loss. Despite the importance of this prerogative for agenda-setting and the development of the law, the chief justice operates within constraints: the need for majority support for the proposed opinion and the efficient operation of the Court. In particular, the chief justice often assigns opinions to justices with whom he allies in order to maintain fragile conference majorities. Chief Justice Rehnquist also asserted that his assignments were based on the need to complete work on the cases and to maintain an equitable distribution of cases across the justices. Using data drawn from the papers of Justice Harry A. Blackmun, I test these expectations through an examination of opinion assignment during the Rehnquist Court (1986-1993 OT).

The Seattle and Louisville school cases: There is no other way

Abstract: In Parents Involved in Community Schools v. Seattle School District No. 1, (1) the Supreme Court addressed two student assignment plans that relied upon race to determine which public schools certain children could attend. The Seattle suit challenged high school assignments; the Louisville action, elementary and middle school placements. The Court characterized each plan as voluntary rather than remedial and held that each violated the Fourteenth Amendment's Equal Protection Clause. That judgment required Justice Kennedy's crucial fifth vote, and his concurring opinion explicitly declined to rule out the achievement of diversity as a compelling educational interest or to eliminate the utilization of all race-conscious means. (2) Nonetheless, Parents Involved goes a considerable way toward affirming that our common citizenship and shared humanity transcend differences of ethnicity and race and that a Republic riddled with race-conscious decisionmaking is not what America aspires to be. Five Justices contributed opinions in this case, and the debate was as impassioned as one would expect a debate on race, schools, and the country's past and future course to be. In general, these high stakes elicited a high quality of judicial discourse. Yet this battle brought no peace or even truce, and indeed left only the impression that the Court's own decisions on the use of race in education remain in tension (3) and that the profound differences that persist within the Court and throughout the country on these questions will be argued just as heatedly another day. I propose to examine the five opinions in three groups: first the Roberts court and plurality opinion and Thomas concurrence; next the Kennedy opinion concurring in part and concurring in the judgment; and then the Stevens and Breyer dissents. As a judge of an inferior court, I approach my task with the deepest respect for the Court and its members and in the hope that the candor necessary for worthwhile commentary is but a mark of appreciation for the conscientious manner in which that fine institution goes about its work. I. The Roberts and Thomas Opinions The Chief Justice appropriately took the lead opinion for himself. The tradition of Chief Justices writing on race and education, while hardly uniform, goes back to Brown (4) (Earl Warren) and Swann (5) (Warren Burger). Yet this case, unlike Brown and Swann, was not unanimous. In fact, the 5-4 decision, with crucial portions of the lead opinion not supported by a majority, was about as far from unanimity as a court could be. And this case, unlike Brown and Swann, did not vindicate the efforts of the parties seeking to achieve a greater degree of racial integration in our public schools. (6) For these and other reasons, holding the Seattle and Louisville plans invalid portends a ferocious onslaught. It will be said that the very Court that led the fight for school desegregation turned history on its head; that the Court's decision served to perpetuate resegregative trends in public education already underway; that the Court allowed the fact of housing segregation to foreclose educational opportunities as well; that the Court forsook not only its traditions but also its respect for precedent; that a Court majority ostensibly opposed to activism was all too ready to practice it; and, most seriously, that the Court abandoned African Americans in their long struggle to achieve true equality in these United States. Justice Stevens expressed his "firm conviction that no Member of the Court that [he] joined in 1975 would have agreed with [the] decision." (7) Justice Breyer predicted the decision would be one that "the Court and the Nation will come to regret." (8) The New York Times warned that there "should be no mistaking just how radical this decision is." (9) And in the Washington Post, Eugene Robinson insisted that society's quest for fairness and equality could proceed only "by working around those dour men in black robes on Capitol Hill. …

The Supreme Court's Confused Election Law Jurisprudence: Should Competitiveness Matter?

Abstract: I. INTRODUCTION The Roberts Court handed down two election law decisions in its first Term. The decisions did not create significant change in the constitutional framework of election law. However, they did not leave a stable status quo, as the decisions, to a degree, contradict each other. In Randall v. Sorrell, six Justices struck down a Vermont campaign finance law but disagreed why it was unconstitutional.1 In League of Unitea Latin American Citizens v. Perry (LULAC), five Justices declined to sustain a partisan gerrymandering claim, but disagreed on whether such claims could even state a valid cause of action.2 Each lead opinion produced significant criticism from the concurring Justices, as well as vigorous dissents. The varied positions of the Justices suggest that the Court's temporary position on election law is unstable. The rationales of Randall and LULAC exhibit a contradiction concerning electoral competitiveness. Justice Breyer's plurality opinion in Randall relied on the anticompetitive effects of the campaign finance law at issue to strike it down.3 However, Justice Kennedy's plurality opinion in LULAC ignored the anticompetitive effects of gerrymandering over the objections of the dissenters.4 It is difficult to see why electoral competitiveness should be important to the Constitution in one context but irrelevant in another, yet the Court's holdings yield just that result. Because electoral competitiveness involves important constitutional considerations, the Supreme Court should treat it consistently. This Comment will explore the tension between these two decisions and the idea of electoral competitiveness as a factor in evaluating the constitutionality of election laws. Part II presents a brief survey of the degree and effects of electoral competitiveness in American politics. Part III gives a background on Supreme Court election law jurisprudence. Part IV examines Randall in depth, while Part V treats LULAC. Part VI analyzes the positions espoused by the Justices on the current Court and suggests possible directions that the Supreme Court could take to resolve the discrepancies in its electoral jurisprudence. II. THE IMPORTANCE OF ELECTORAL COMPETITIVENESS Despite the closeness of the last two presidential elections, American elections are not generally competitive. Gerrymandering5 has greatly reduced the degree of electoral competitiveness in the House of Representatives, as well as in many state legislatures.6 For example, American politics expert Michael Barone notes that the post-2000 Census redistricting cycle yielded "many bipartisan incumbent protection plans that left few seats at risk for either party."7 The 2002 elections resulted in a House of Representatives in which only 39 out of 435 members had won with less than 55 percent of the vote.8 After 2004, this dropped to 26 members.9 Only twenty-three House elections in 2004 had a margin of less than 10 percent between the winning candidate and the runner-up.10 While the 2006 elections were more competitive, election years of revolutionary change are the exception rather than the norm in American politics.11 The general lack of electoral competitiveness causes many problems. That only 6 percent of the elections for the House of Representatives in 2004 were particularly competitive is troubling since the Founders intended the House, with its frequent elections, to be the part of the Federal Government closest to and most representative of the voters. James Madison thought that the Constitution would ensure that the House would "have an immediate dependence on, and an intimate sympathy with, the people."12 Particularly ironic is his statement that "we cannot doubt that . . . biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents."13 Today most Representatives are easily reelected if they want to stay in office. …

The Newer Incoherence: Competition, Social Science, and Balancing in Campaign Finance Law After Randall v. Sorrell

Abstract: This article, part of a symposium on Election Law and the Roberts Court in the Ohio State Law Journal, considers the Supreme Court's recent decision in Randall v. Sorrell (2006) striking down Vermont's campaign expenditure and contribution limits. The Supreme Court's campaign finance jurisprudence before Randall was marked by swings in doctrine and general incoherence. At first glance, the plurality opinion in Randall appears to add a level of coherence to campaign finance law by judging the constitutionality of such laws through an assessment of the relationship between campaign contribution limits and political competition. Alas, the appearance of coherence is illusory, and there is little reason to believe Randall marks a significant move by the Courts to embrace the political markets approach.As Part II explains, the Court in Randall has not embraced competition as the organizing principle for analyzing the constitutionality of all campaign finance laws or election laws. The focus on competition - which garnered the votes of only three Justices, and one of the three noncommittally - appears to be the outcome of a compromise between Justice Breyer, who wanted to preserve as much of existing doctrine as possible against a deregulationist trend, and the two newest Justices on the Court. Existing Supreme Court election law doctrine, including its recent partisan gerrymandering jurisprudence, also rejects the anticompetition principle as a means of deciding election law cases.Part III then turns from external coherence to the internal coherence of the competition test for low contribution limits, finding the test less predictable and coherent than its technocratic nature suggests. Following Randall, it appears that challenges to low contribution limits will turn - or at least appear to turn - upon fact-intensive political science expert testimony about the amount of money necessary to run a competitive race in the relevant jurisdiction. But such testimony often will be speculative when it comes to whether enough money may be raised to insure a competitive race. Court decisions could well turn upon a thin credibility determination to be made by the court, a determination that may depend upon each judge's predisposition to favor or oppose the particular campaign finance regulation.Part IV advocates that courts engage in a careful and honest balancing that gives considerable deference to the value judgments made by states in enacting campaign finance laws, but then use close scrutiny to make sure the measure is carefully drawn to meet those goals. This kind of honest balancing was impossible in Randall because of the Court's ostensible rejection of the political equality rationale for campaign finance regulation. The real question the Randall Court should have asked is whether the Vermont law was closely drawn to promote political equality and, if so, whether the costs to individuals and groups who wanted to mobilize for political action were too great to allow the law to go forward despite its gains in promoting political equality.

James Madison and Legislative Chaplains

Abstract: The U.S. Supreme Court has long interpreted the Establishment Clause of the First Amendment by reference to the attitudes and practices of the Framers, including James Madison. Among their practices, the congressional chaplaincy has garnered special attention and influence. In particular, in Marsh v. Chambers, 463 U.S. 783 (1983), the Court referred to the Framers' endorsement of that practice as it upheld a state legislative chaplaincy. Marsh has subsequently formed the core of the Court's precedential support for upholding certain other governmental activities endorsing a religious belief or practice, most recently in Van Orden v. Perry, 125 S. Ct. 2854 (2005) (plurality opinion). Most judges and commentators who have examined Madison's attitude toward the legislative chaplaincy have concluded from certain of his actions that he, like the other Framers, probably supported the congressional chaplaincy as it was being instituted in the first House of Representatives, although he may have changed his mind later in life. This Article canvasses the historical evidence about Madison's life and writings in an attempt to understand his attitude toward legislative chaplains. The Article concludes that Madison never wavered on the issue of legislative chaplains and always thought them inconsistent with religious liberty. This conclusion counsels reappraisal of the lines of Establishment Clause jurisprudence founded on the Framers' supposed uniform acceptance of the congressional chaplaincy and similar religiously imbued practices.

The Constitutionality of Religious Symbolism after Mccreary and Van Orden

Abstract: I. INTRODUCTION The public display of symbols with religious significance has been the subject of extensive litigation in the last fifty years. That litigation culminated in two cases recently decided by the Supreme Court involving challenges to the public display of the Ten Commandments, McCreary County, Kentucky v. ACLU of Kentucky1 and Van Orden v. Perry.2 In these two decisions, the Court did little to clarify the law in this area. In McCreary, it struck down a display of the Ten Commandments in a county courthouse as a violation of the Establishment Clause. In a plurality opinion in Van Orden, it affirmed a display of the Ten Commandments on the grounds of the Texas State Capitol, leaving the lower courts to sort out the principles that resulted in such disparate results regarding substantially similar displays. While the decisions are less than a model of clarity, they do suggest some principles that may be applied by courts in considering the constitutionality of similar displays, as well as some potential clues as to the Court's future jurisprudence in this area. In particular, two themes emerge from the Court's decisions. First, the Court made clear that displays having historical as well as religious significance generally do not violate the Establishment Clause. This came across most clearly in Van Orden, where four Justices reiterated their belief that religious displays having historical significance, such as those depicting the Ten Commandments, were plainly constitutional.3 A fifth Justice, Justice Breyer, espoused similar views.4 Given the recent changes in the Court's personnel, it is likely that this theme running through the Court's decisions will take on a more prominent role. Indeed, a constitutional rule that prohibited the display of items that have religious significance would manifest a profound hostility to religion, would be inconsistent with traditional notions regarding the proper roles of church and state, and would largely exclude religion from the public square. Such a rule, moreover, is unnecessary given that displays that convey a "dual message," one that is both historical and religious, do not necessarily suggest any "endorsement" of religion. In allowing such displays on government property, the government may merely be recognizing the historical significance of the items contained in the display. Second, in its recent decisions, the Supreme Court reaffirmed the objective nature of the test used to evaluate whether a particular display constitutes an establishment of religion. In McCreary, the Court took great pains to make clear that it was in fact adhering to an objective test in striking down the Ten Commandments display and that it was only the unusual history of that display that made it constitutionally impermissible.5 While some may dispute whether the Court properly applied that test, in both McCreary6 and Van Orden,7 the Court reiterated that the test was an objective one. Again, the emphasis on the objective nature of the constitutional test may be beneficial in terms of establishing guidelines for the display of religious symbols. An objective test is far easier to administer and apply than a subjective test and may in the long run lead to a reduction in the amount of litigation, which can often be particularly divisive and consume scarce resources. Moreover, the objective test prohibits the "heckler's veto"; it is not the hypersensitive member of society whose values and judgments govern the constitutionality of a particular display but rather the judgment of a reasonable member of society. Were the rule otherwise, religion would be excluded entirely from public fora given that one may always find someone who is offended by a particular display of religious symbolism. Despite these recent developments, given the recent changes in the Court's composition, it is possible that it may substantially redefine its religion clause jurisprudence. …